davidmalmolevine
(superposter)
11/7/00 09:41 AM
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What I am trying to explain to the Supreme Court
[Post#: 62343
/ re: 60164
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This is the argument that I am trying to get across with the Harm Reduction Club's "Constitutional Challenge", a challenge begun in 96 when the club opened, a challenge that has been winding it's way through court ever since, a challenge ending sometime next year, when the Court must hear arguments on whether cannabis is "signifigantly" harmful, "trivially" harmful or other nonsense. I of course will try to bring up harm reduction at every opportunity, which will be often, considering the name of the club.......this is all the "harm reduction" argument (condensed) that I have yet to get permission to argue.......it was handed in on Halloween.
APPLICANT’S MEMORANDUM OF ARGUMENT
PART I - INTRODUCTION
1. This case raises an issue that our politicians have avoided dealing with since they shelved the LeDain Commission in 1973. The issue is not only of national importance, but of global importance. The “Adjudicative facts” are straightforward, and not in dispute. The main issue is the constitutionality of the prohibition against the possession of cannabis (marijuana) for the purpose of trafficking, contained in the former Narcotic Control Act, and now in the Controlled Drugs and Substances Act, in light of section 7 of the Canadian Charter of Rights and Freedoms.
2. Because the appellant was charged with an indictable offence, and because there was a dissent in the court of appeal below, he enjoys the right of appeal, pursuant to section 691(1)(a) of the Criminal Code of Canada. A notice of appeal was filed July 31st, 2000. He now seeks leave to appeal on other issues not arising from the dissent, that the court below erroneously declined to decide because it focused on cannabis possession and use without considering the reduction of the risk of harm to the user from properly regulated harm reduction, cultivation and distribution techniques.
3. Another issue that was argued but not dealt with below pertains to section 15 of the Charter, in relation the principle of equality and “substance orientation”. Can it be said that a natural preference or orientation to herbs (a "taste") over other, more toxic stimulants, relaxants and anti-depressants (due to a positive relationship with cannabis and legitimate concerns over it's risks compared to those of other drugs) result in the “substance orientation” of the individual being considered a personal characteristic not unlike an enumerated ground, such as "religion" - a "philosophical orientation", or, a recognised analogous ground, found to exist in Vriend (1998), namely “sexual orientation”? Given the relative harmlessness of the “substance orientation” characteristic, within the context of the harm principle, why shouldn't this orientation receive the equal protection and the equal benefit of the under section 15 of the Charter? Similarly, why shouldn't a person wishing to choose a vocation (a "pursuit") (such as a cannabis farmer or breeder, or a cannabis café owner) who wishes to compete on a fair playing field with other substance providers (such as the brewers of alcohol and spirits, tobacco farmers and distributors, and the importers of coffee beans), also receive section 15 protection - the "economic/vocation orientation"?
4. Some of today’s legislators view non-necessity medicinal use (for stress, depression, fatigue, loss of appetite, lack of sleep/motivation/focus) not as an intelligent preference or choice, but as a sickness, and they are busy creating punishments other than jail and a criminal record (such as “diversion” or free labour, mandatory fines, urinalysis and group therapy) for “recreational” cannabis users. Viewing recreational cannabis use as inherently harmful will prevent healthy people from getting safe access, and perhaps even entrench these new humiliating and unnecessary “demand reduction” rituals. It may also prevent poor people from being included in the economy, soon to be monopolised only by university educated and corporate financed “experts” – all due to the strict distribution regulations justified by the supposed inherent harms of the substance. Will section 7 and 15 liberty and equality protection result in cannabis users, growers and dealers avoiding all unjust punishments (including over-regulation and monopoly), or will it mean they simply avoid jail?
5. The answer to many other pressing issues of human moral evolution are touched on within the cannabis prohibition issue. For example: Human autonomy in the areas of health, lifestyle and vocation. A need to return to organic farming and herbal medicine. A final end to all scapegoating and concentration camps. The right of small farmers and independent café owners to participate in the emerging herbal healthcare system and tolerance-tourist industry. The pressing economical and ecological need to eliminate miles of red tape that’s killing the infant industrial hemp movement in the cradle. The dangers of artificially concentrated wealth and power. A new respect for the golden rule (the positive corollary of the "harm principle"). The vital occasion to question our entire approach to global drug prohibition – civil war in every country - the biggest war on earth. All of these issues are to be found within an inclusive, broad and bold “liberty and equality” resolution to the cannabis prohibition issue.
6. This issue goes to the core of both Canadian and global politics. Extreme yet realistic and practical solutions to problems resulting from the improper use of drugs continue to be raised by the young and the young at heart through music and film, comics and books, hemp stores, compassion clubs, cafés, demonstrations and rallies, radio programs and internet websites, and in the case of the Harm Reduction Club, mass civil disobedience. As with medical marijuana and industrial hemp, the right of poor people to grow and deal cannabis, and the right of healthy people to smoke it or any other herb, are issues which continue to be raised by regular people all over Canada. Considering the serious stakes, and considering also for the past thirty five years the sacrifice cannabis activists have made of their time, their security, their freedom, these issues demand resolution.
7. In this case, the Applicant can demonstrate the change of heart manifest in the reaction of various communities to his actions, the use of “harm-reduction” strategies and their effect on providing growers, dealers and users with section 7 liberty protection, while explaining the section 15 equality protection rights that we should quickly extend to any persecuted, harmless group of people that is being discriminated against on an enumerated or analogous ground. The Applicant bases his appeal on the assertion that Canada is a country that constitutionally protects as many harmless human "tastes and pursuits", cultures or nations as possible, not as few as possible.
8. The Applicant seeks leave to appeal his conviction and sentence under s. 40(1) the Supreme Court Act. The Applicant seeks leave to argue “harm reduction” and “protection for dealers” and “equality” arguments. The main reason why the Applicant became a dealer within a group called the “Harm Reduction Club” in the first place was primarily to defend dealers by educating people about the role they play in harm reduction. The Applicant submits that the argument should not now be limited to one regarding the harms that may come with cannabis use in a vacuum or in the black market. Further, the Applicant submits that it is unjust to not be allowed to explore the topic of equality between these different tastes and pursuits inside an institution within which coffee or cola beverages are freely available.
BACKGROUND FACTS
9. The Adjudicative facts are set out in the judgement below as follows:
[3] The appellant David Malmo-Levine described himself to the court as a “marijuana / freedom activist.” Beginning in October 1996, he helped operate an organization in East Vancouver known as the “Harm Reduction Club” which was a co-operative, non-profit association of its members. The stated object of the club was to educate its users and the general public about marijuana and provide unadulterated marijuana to its users at club cost. The club had approximately 1800 members.
[4] The club educates it’s members on a wide variety of “safe smoking habits” to minimize any harm from the use of marijuana. Members are required to sign a pledge not to operate motor vehicles or heavy equipment while under the influence of the substance.
[5] On 4 December 1996, police entered the premises of the Club and seized 316 grams of marijuana, much of it in the form of “joints”. Mr. Malmo-Levine is charged with possession of marijuana for the purpose of trafficking contrary to section 4 of the NCA.
10. In addition, Cst. S. Dion, was tendered by the Crown as an expert on
cannabis trafficking. He confirmed that, to some extent, the Club offered methods to reduce the harm from any marijuana use, and that the Club was a consumer-oriented venture, following a well established cultural tradition allowing the use of marijuana. Further, testimony from the Applicant’s mother, father and apartment manager demonstrated neighborhood, community and multi-generation support for the Club.
Finally, it should be noted that the Club’s membership card specified that members pledged not to drive while “impaired”, not merely while “under the influence”.
R. v. Malmo-Levine; R. v. Caine (2000) B.C.J. No 1095 (B.C.C.A.) at paras. 3-5
Transcript of Excerpts of Proceedings at Trial, February 9, 1998, C.L. Malmo at p. 1; February 19, 1998, J.R. Woodfine at p.3-14; and March 12, 1998, Cst. S. Dion at pp. 37-38.
Ex. 37 at trial, box including membership cards.
11. The “Legislative Facts” as found in Caine at trial are as set out in the judgment below at paragraphs 15-28. The appellant was tried before Curtis, J., in the Supreme Court of British Columbia. At the commencement of his trial, he asked the court to declare a voir dire in order that the appellant could call evidence with respect to the use of marijuana in a harm reduction context (including protections and benefits for growers and dealers who practice harm reduction). The court invited the appellant to file, in writing, what he considered his best facts. Consequently, the Appellant filed the "Applicant's List of Witnesses and Summary of Evidence (referred to above) and exhibits 1 through 4 consisting of the following:
1) Ex.1 - Statement of Adjudicative Facts;
2) Ex.2 – Addendum to Legislative Facts;
3) Ex.3 – Defence Submission in Support of Voir Dire with respect to
Constitutional Challenge;
4) Ex.4 – Appellant’s Statement of Facts.
R. v. Malmo-Levine; R. v. Caine (2000) supra, (B.C.C.A.) at paras15-28
Exhibit 1 - 4 supra – at trial and List of witnesses and Summary of Evidence
13. Exhibit 3 is essentially a reprint of the brief submitted in R. v. Caine at trial, modified to apply to the appellant’s case with some additions at the beginning and at its end. Exhibit 4 contains additional facts specific to cannabis harm reduction. The important fact arising out of that document that the appellant wishes to stress is:
“5. There in fact are no harmful effects of marijuana on others or society that can’t be reduced in some way through reasonable regulation (i.e. impairment testing).”
Exhibit 4 - at trial – Statement of Facts Submitted by the Applicant, para. 5
14. Curtis J., after lengthy argument, refused to hear this evidence, ruling that it was not relevant to the section 7 Charter analysis. The Court of Appeal restricted their consideration of the appellant’s arguments to section 7, and did not deal with the other charter arguments advanced in relation to section 15, nor did they go on to consider the appellant’s case involving a charge of “possession for the purpose of trafficking” in a “harm reduction” context. However, in upholding the prohibition against simple possession, the courts below, while finding no evidence of a risk of direct or indirect harm to another specifically, found a reasonable apprehension of a risk of harm to the public generally, and in so doing, relied upon conduct involving unregulated distribution. Regulated distribution would eliminate those risks. Instead of avoiding consideration of the “trafficking argument” until the “simple possession” argument is dealt with, this court should view “harmless use” as more probable through proper "harm reduction" dealing, therefore, the trafficking argument must be dealt with at the same time as the simple possession argument.
R. v. Malmo-Levine; R. v. Caine (supra) at paras. 12 – 13, 161-162, 187
PART II
STATEMENT OF POINTS IN ISSUE
Public Importance
15. The appellant was charged with the indictable offence of possession for the purposes of trafficking, contrary to section 4(2) of the Narcotic Control Act (now CDSA section 5(2)). Because of the dissent in the Court of Appeal below, he enjoys a right of appeal under section 691(1)(a) and a notice of appeal was filed accordingly, on July 31st, 2000. The appellant seeks leave to appeal on these additional points in issue not dealt with in the dissent, that the appellant says are not only of national public importance, but essential to the entire question of cannabis prohibition;
1) The Court of Appeal erred when they characterised the harms that may come with cannabis use as inherent, instead of a product of mis-cultivation, mis-distribution and mis-use. By focusing solely on cannabis use by itself, and by failing to differentiate between use and misuse, the Court estimated increased health costs based upon the present day prohibition system of distribution, without factoring in the effects of legal harm-reduction cultivation and distribution techniques on the health of the legal user. In other words, cannabis harms were estimated based upon black-market risks, rather than evaluated on it’s level of risk in a more ideal framework which would be possible under a legal and regulated system;
2) The Court of Appeal also failed to address the issue of whether or not the harm principle applies to growers and dealers of cannabis (such as the Applicant and others within the “Harm Reduction Club”) who (by following a strategy of organics, quality control and consumer education) play an essential role in cannabis harm reduction;
3) The Court of Appeal erred in not considering the principle of equality found in sec. 15 of the Charter as it applies to “substance orientation”, following the principle underlying its decision in Vriend v. Alberta [1998] 1 S.C.R. 493; and erred in not applying equality to every producer and distributor of stimulants and relaxants – bean, grape, herb or otherwise;
4) The learned trial judge erred in declining to declare a voir dire and to allow the appellant to call evidence in support of his constitutional challenge. The Court of Appeal erred in holding that the result would not have been different if the evidence had been admitted;
5) Such further and other grounds as Counsel may advise.
PART III
ARGUMENT
Harm Reduction: Education, Quality Control and Safe Point-Of-Sale
16. Cannabis misuse does cause some harm. This harm is avoidable. In R. v. Caine, Her Honor Judge Howard wrote;
“…naïve users should be careful and if they chose to smoke, should do so with experienced users and in an appropriate setting.
R. v. Caine, [1998] B.C.J. No 885 para. 44
17. Braidwood J.A. quotes Howard P.C.J in R. v. Caine where she pointed out that it is the prohibition of marijuana that creates an artificial “lack of governmental control over the quality of the drug on the market”. All of the potential harms or the risk thereof that cannabis offers can be addressed by a greater awareness of proper dose levels and strain selection, while at the same time focusing on setting, mindset and especially quality - as wisely suggested by Howard, P.C.J.
R. v. Malmo-Levine; R. v. Caine (supra) at para. 28
18. Braidwood J.A. mentions the “Ouimet Report” (1969), and it’s recommendations that “no conduct should be defined as criminal unless it represents a serious threat to society, and unless the acts cannot be dealt with through other social or legal means. (Applicant’s emphasis) Braidwood J.A. then quoted two other reports – the Law Reform Commission report (1976) and the Criminal Law in Canadian Society report (1982) which say more or less the same thing.
R. v. Malmo-Levine; R. v. Caine (supra) at paras. 112-116
19. Exhibit 4 at trial below presents the set of facts that Curtis J. determined “not relevant” to the constitutional question. Within these facts is to be found the following key statement;
5. There in fact are no harmful effects of marijuana on others or society that can’t be reduced in some way through reasonable regulation (ie impairment testing). The harmful effects on the individual are minor, mitigatible, and only affect less than 1% of the population who are chronic users in any event.
Exhibit 4 - at trial – Statement of Facts Submitted by the Applicant, para. 5
20. Each of the following “inherent harms” is actually a risk that can be reduced to "caffeine risk levels" through proper cultivation, distribution and mode of delivery;
a) the “use or abuse of marijuana” “provokes erratic behavior in the user or abusive user.” R. v. Hamon (1993), 85 C.C.C. (3d) 490 (Que. C.A.) at pp 492-494
Prohibition removes awareness of dose levels, strain selection, mindset, proper setting, purity etc, etc, which then leads to erratic behavior. Erratic behavior is not an inherent result of cannabis use.
b) “marijuana does cause harm” although “not as much harm as first believed”. R. v. Clay [1997] O.J. No. 3333 at para. 21
Marijuana causes harm in the same way that caffeine causes harm – through misuse. Prohibition exacerbates misuse.
c)“accidents involving complex machinery” could occur R. v. Caine [1998] B.C.J. No. 885 (B.C. Prov. Crt.) at para. 122
Prohibition removes awareness of dose levels, strain selection, mindset, setting, purity etc, etc, which then leads to accidents. Accidents are not an inherent result of cannabis use.
d) a “vulnerable person” such as an adolescent, may become a chronic user and hurt themselves from the “act of smoking”. Caine, supra at para. 125
Both adolescent users and chronic users may hurt themselves from smoking excessive amounts of low-potency, chemically fertilized cannabis through an aluminum can pipe, but there is no evidence anywhere to suggest that organic, high-potency cannabis, smoked in moderation through a glass water-bong during high pleasure, low pressure activities has harmed anyone – be they chronic, adolescent, pregnant or mentally ill.
e) “There is a risk that, with legalization, user rates will increase and so will these costs”. Caine, supra at para. 126
There is evidence to suggest that re-regulating cannabis will increase use rates but decrease misuse rates, decrease health costs (Affidavit of Eric Single in R. v. Clay) and law enforcement costs (Neil Boyd, personal communication with the appellant, Nov. 1995), while adding billions in tax revenue.
f) “schizophrenia” (it “may”“trigger” it); R. v. Clay [2000] O.J. No. 2788 (Ont. C.A.) at para. 10
There is no evidence that cannabis (especially the sativa strain, taken in the right dose and setting) has any more negative impact on schizophrenics than non-schizophrenics.
g) “Bronchial pulmonary damage” (with heavy use); Clay, supra at para. 10
Evidence of cannabis related lung damage has yet to take into account the effects of chemical fertilizer (most or all of which is radioactive) as a factor. There is no evidence whatsoever to suggest that moderate amount of organic cannabis, smoked through a water filter does any damage whatsoever – even when smoked “chronically” (two to three grams per day). There is evidence to suggest that most tobacco-related cancer is fertilizer-related.
h) “probably harmful effect of cannabis on the maturing process in adolescence”; Clay, supra at para. 10
There is no evidence of this whatsoever. The applicant himself has been smoking since the age of fourteen.
i) “the implications for safe driving arising from impairment of cognitive functions and psycho motor abilities”; Clay, supra at para. 10
Again, the impairment is a circumstance of familiarity, dose level, strain, diet, other drugs, amount of sleep and other factors, and not an inherent result of using the drug.
j) “from the additive interaction of cannabis and alcohol”; Clay, supra at para. 10
This is true – alcohol is a very dangerous drug and should not be mixed with any other drugs.
k) “from the difficulties of recognizing or detecting cannabis intoxication”; Clay, supra at para. 10
This is only a problem if one wishes to identify non-impaired cannabis users – there is no legitimate reason to do so, only scapegoating reasons.
l)“the possibility, suggested by reports in other countries and clinical observations on this continent, that the long-term, heavy use of cannabis may result in a significant amount of mental deterioration and disorder”; Clay, supra at para. 10
The word “may” is not a scientific word. Determining if this is a result of “heavy use”, “heavy mis-use”, poverty, poor diet or some other factor or combination of factors may prove difficult or impossible.
m)“the role played by cannabis in the development and spread of multi-drug use by stimulating a desire for drug experience and lowering inhibitions about drug experimentation.” Clay, supra at para. 10
The desire to use other drugs properly is not a harmful desire. When we as a society come to understand that there are no bad drugs, just bad relationships with drugs, we will all be a lot better off. It is not up to society to ban or discourage all drug use, but rather to educate against drug mis-use and regulate points of sale to address safety and health concerns. All drugs may be misused, and all may be used properly and to the user’s advantage.
n)“It is almost certainly harmful to some extent in high doses”. Clay, supra at para. 10
The same can be said of caffeine, Asprin, vitamins, and raw potatoes. The threshold for prohibiting an entire culture cannot be so low.
21. Within the literary origin of the harm principle - “On Liberty” by John Stuart Mill – one can also find the origin of "Harm Reduction". In “On Liberty”, Mill outlines what is to be protected by a “civilized community” – all activities harmless to others. Unimportant activities, and activities harmful to oneself, do not warrant force as a method of education or correction. Instead, Mill suggests “remonstration”.
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, both physical and moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. . . In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 13 of the Cambridge, 1989 edition.
22. In “On Liberty”, Mill specifically explains what “liberty” rights must be protected. He firsts lists the “important” rights – our political rights – now found in our Constitution. He then lists the “less important” rights:
Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our lives to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse or wrong. Thirdly, from this liberty of each individual follows the liberty, within the same limits, of combination among indivduals. No society in which these liberties are not, on the whole, respected, is free, whatever may be it’s form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not try and deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 15 of the Cambridge, 1989 edition.
23. The first line of the above quote goes a long way to explaining how this “fundamental principle” can apply to the most “trivial” of tastes or pursuits. The last line of this quote can be applied to the argument that cultivators and distributors of cannabis can benefit from the harm principle as much as users can.
In R. v. Malmo-Levine, the Crown, in its factum, at p.6 para. 14, argued that;
If the liberty contemplated in s.7 is to have any meaning as a constitutionally protected value, then it cannot be interpreted to protect every aspect of individual behavior simply because the person asserting the right claims that behavior is an aspect of “character”, “mannerisms” or “tastes”. Such an approach would trivialize the protections afforded by the Charter.
24. But this is exactly contrary to what John Stuart Mill asserted – protected “tastes” – so long as these tastes do not harm others. Mill goes on to point out a good reason to value freedom – in encourages independent thought and an intelligent citizenry. Mill states that “Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.” (p. 15-16), that “The mental and the moral, like the muscular powers, are improved only by being used.” (p. 59) and that;
If there was nothing new to be done, would human intellect cease to be necessary? Would it be a reason why those who do the old things should forget why they are done, and do them like cattle, not like human beings? . . .If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in himself, but because it is his own mode. Human beings are not like sheep; and even sheep are not indistinguishably alike.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p.65 and 67 of the Cambridge, 1989 edition.
25. The reason why the freedom to make mistakes over our own lives and to hurt ourselves is twofold. The first reason - outlined in the above quotations - is that the freedom to make mistakes and take risks concerning our own lives helps us become smarter – and less like livestock.
26. The other reason why freedom is important is because, when it is protected, it prevents tyrants from preying on weak scapegoats. In the words of US Justice Harlan F. Stone;
History teaches us that there have been few infringements of personal liberty by the state which have not been justified, . . . in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities.
Minersville School Dist. V. Gobitis, 310 U.S. 586, 604 (1940)
27. The argument that “marijuana is inherently harmful-to-others” respects the harm principle, and can be attempted by prohibitionists. If they possess evidence of such things, let us evaluate this evidence, and determine if it is 1) cross-referenced, and 2) an actual inherent harm and not a result of a biased experiment. The argument that “cannabis is too unimportant to protect” must be dropped, as, according to (the grandfather of the Canadian Constitution) J.S. Mill, all harmless-to-others “tastes and pursuits”, each attempt at “pursuing our own good in our own way” is to be allowed – absolutely and “unqualified” - apart from the "harm principle".
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 15 of the Cambridge, 1989 edition.
28. A popular myth that has yet to really be challenged is that the state can somehow deal with drug abuse by abandoning a regulatory framework and demand total abstinence of a popular pastime. The failures of Canadian and American alcohol prohibition should not be overlooked at this point. They mimic the failure of cannabis prohibition, a failure first outlined in R. v. Caine (para 63), and mentioned at para. 28 of the most recent R. v. Malmo-Levine ruling;
[1] countless Canadians, mostly adolescents and young adults, are being prosecuted in the "criminal" courts, subjected to the threat of (if not actual)imprisonment, and branded with criminal records for engaging [in] an activity that is remarkably benign (estimates suggest that over 600,000 Canadians now have criminal records for cannabis related offences); meanwhile others are free to consume society's drugs of choice, alcohol and tobacco, even though these drugs are known killers;
[2] disrespect for the law by upwards of one million persons who are prepared to engage in this activity, notwithstanding the legal prohibition;
[3] distrust, by users, of health and educational authorities who, in the past, have promoted false and exaggerated allegations about marihuana; the risk is that marihuana users, especially the young, will no longer listen, even to the truth;
[4] lack of open communication between young persons and their elders about their use of the drug or any problems they are experiencing with it, given that it is illegal;
[5] the risk that our young people will be associating with actual criminals and hard drug users who are the primary suppliers of the drug;
[6] the lack of governmental control over the quality of the drug on the market, given that it is available only on the black market;
[7] the creation of a lawless sub-culture whose only reason for being is to grow, import and distribute a drug which is not available through lawful means;
[8] the enormous financial costs associated with enforcement of the law; and
[9] the inability to engage in meaningful research into the properties, effects and dangers of the drug because possession of the drug is unlawful.
R. v. Caine [1998] B.C.J. No. 885 (B.C. Prov. Crt.) at para 63,
R. v. Malmo-Levine; R. v. Caine (supra) at paras 28
29. The same could be said of alcohol prohibition, coca prohibition, heroin prohibition, and most assuredly, if we were foolish enough to legislate against them, tobacco, caffeine and chocolate prohibition as well.
30. Is there a limit to the government's ability to interfere with the individual? Drug war researcher and author Ethan Nadelmann says;
…if you believe the ultimate objective of the government is to maximize your life-span to the ultimate, then our public policy objective should be to make sure that the average life-span of the average Canadian or American is one hundred years, then there in fact is no reasonable limit … it’s the public health system taken to it’s totalitarian extreme. If you see no natural limits based upon individual autonomy or civil liberties or privacy or whatever words you want to use there – there is no limit on how far we can go. I think we need to draw the line.
“Rethinking the Global War on Drugs” (video), University of British Columbia, Faculty of Law, April 22, 1994
31. The Applicant, too, submits that there is a need to draw the line. The line that should be drawn is: only such acts or omissions that present a reasoned apprehension of a risk of harm to others or society as a whole may be subject to regulation. Those posing a greater risk – a serious, substantial or significant risk – may be subject to prohibition via the criminal law or peace, order and good government (POGG) powers. If the potential harm is actually a risk, a risk to the risk taker only, then society’s role is that of educator and regulator, not prohibitor.
32. Casanova once said “In wise hands, poison is medicine. In foolish hands, medicine is poison.” This is true of cannabis as much as every other drug – except a little less, as cannabis is the only popular recreational drug – unlike caffeine and opiates – with which “one cannot take an overdose that will cause death.”
Exhibit 3 Defendant’s Submissions in Support of Voir Dire - at trial - para. 14
Equality
33. In R. v. M. (C.), involving consensual anal sex between young people, the Ontario Court of Appeal struck down the offence as contrary to the charter. While it is true that both cannabis use and anal sex may be “moderately risky”, they are also both “acceptably risky” and, if done properly, harmless. The comparison between the need to protect both groups of hedonistic deviants is made clear when the ruling is read out loud – it could very well be about young people using cannabis;
It strikes me as decidedly inappropriate to deal with health risks at any age by using the punitive force of the Criminal Code, but especially so for young people…health risks ought to be dealt with by the health care system…It is not enough for a government to assert an objective for limiting guaranteed rights under s. 1; there must, in my view, also be an underlying evidentiary basis to support the assertion. (Applicant’s emphasis)
R. v. M. (C.) (1995) 30 C.R.R. (2d) 112 at 121-123 (Ont. C. A.)
34. Contrast this decision with the famous obscenity decision, R. v. Butler,
mentioned in the court below (p.73) as a reason why evidence of harm is not necessary to make some act illegal;
... The impugned provision is designed to catch material that creates a risk of harm to society. It might be suggested that proof of actual harm should be required. It is apparent from what I have said above that it is sufficient in this regard for Parliament to have a reasonable basis for concluding that harm will result and this requirement does not demand actual proof of harm.
R. v. Butler (1992), 70 C.C.C. (3d) 129 at 165 per Sopinka, J. (S.C.C.)
35. The obvious question is, would “a reasonable basis for concluding that
harm will result” be sufficient for a ban on homosexuality? The answer has to be no, if we are to count our society as civil. The difference between child pornographers, on the one hand, and homosexuals and cannabis users/growers/dealers on the other, is that the child pornographer is a tiny fraction of the population, who’s violation of privacy (and other crimes) are identifiable, inherent harmful in every case, and of the “harm-to-others” type of harms, and cannabis users and homosexuals are deviants from social norms who indulge in pleasurable risks for a variety of reasons, risks that, quite frankly, can be managed quite easily, and, with the exception of some minor social costs and possible impaired use of heavy machinery (which can be legislated against separately), not of the “harmful to others” types of harm. If we are serious about the prevention of future cultural genocide, it is the criteria found in R. v. M.(C), not that found in R. v. Butler, which must be used in any case where any group of people have been accused of presenting a risk of or causing harm to the public.
37. The harm principle manifests itself in Section 7, implicitly as a "principle of fundamental justice", and also in Section 15, implicitly as a main characteristic of groups which may claim protection from discrimination. It also appears explicitly in Germany's constitution, where it was used successfully in the defense of cannabis possession.
R. v. Malmo-Levine, speech to the Court of Appeal, para. 46
38. The common thread between the characteristics of humanity set out in section 15 of the Charter is that they are all characteristics of people who a) have experienced persecution at some time in the past, and b) are not, as in the case of pirates, for instance, inherently harmful to society. It is submitted that cannabis users qualify. The case law to suggest cannabis use is analogous to these other characteristics is Vriend v. A.G. Alta (1998), where Iacobucci J. and Cory J. outline the criteria for inclusion in section 15 protection;
. . . the omission of sexual orientation from the IRPA was deliberate and not the result of an oversight. The reasons given for declining to take this action include the assertions that sexual orientation is a marginal ground . . . By reason of it's underinclusiveness, the IRPA creates a distinction which results in the denial of the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in s. 15(1). This, in itself, is sufficient to conclude that discrimination is present and that there is a violation of s. 15. (Applicant’s emphasis)
Vriend v. Alberta, [1998] 1S.C.R. 493 at pp. 497-498 (S.C.C.)
39. Perhaps “marginal” is to the homophobe what “trivial” is to the euphoriphobe. Perhaps "orientation" is just a four-syllable word for "taste". Can it be said that cannabis users really have an "orientation" to cannabis? In 1991, THC receptors were located in the brain - in the hippocampus (memory), cerebral cortex (higher thought processes) and basal ganglion (movement). In 1993, the body's natural THC, anandamide, (ananda is Sanskrit for internal bliss) was discovered.
Exhibit 3 – at trial – Defendant’s Submission in Support of Voir Dire, para. 13
40. This means that the body produces it's own form of THC, ostensibly for providing its own naturally occurring moments of time-slow, euphoria, relaxation and stimulation. Humans are naturally oriented towards exerting control over our own bodies ability to perform these functions – controlling our bodies in this way is part of controlling our lives and deciding for ourselves what state of mind is best for this or that occasion. But whether it is natural, or just desirable to be a cannabis user is as immaterial to whether or not to grant them constitutional protection as is the question of whether it is natural or just desirable to be a homosexual. It is submitted that the only real criteria is the lack of significant risk of “harm to others”.
Monopoly – Dealers and grower’s right to protection under sect. 7 and 15
41. John Stuart Mill said that civilized society should guarantee the "freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived." (On Liberty – Introduction). He also said;
. . . the class of dealers in strong drinks, though interested in their abuse, are indispensably required for the sake of their legitimate use. The interest, however, of these dealers in prompting intemperance is a real evil, and justifies the State in imposing restrictions and requiring guarantees which, but for that justification, would be infringements of legitimate liberty.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 100 of the Cambridge, 1989 edition.
42. It is submitted that a restriction on false advertising, perhaps by a surtax on promotion equal to the cost of production that would go to directly to consumer advocate groups to ensure accuracy, would be a way to mitigate the problems with over-promotion or sub-quality production of substances such as alcohol, tobacco, caffeine, and within any future cannabis market. If tobacco was organic, and if alcohol wasn’t sold as an aphrodisiac, perhaps other harms could be reduced.
43. The number of cases that would support the "right to deal" is not large, but it does exist. Bouvier's law dictionary includes "the prohibition of unfair monopolies" within its definition of liberty. In case law, there is “The Margarine Reference”, which protects business from legislation that is unrelated to “Public peace, order, security, health, or morality” and to protect against “trade protection” or monopoly.
The Reference as to the Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, affd [1951] A.C. 179
Exhibit 3 – Defendant’s Submission in Support of Voir Dire, para. 137-138
44. There is the principle, found in the Universal Declaration of Human Rights (1948) that says that;
Every one has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability widowhood, old age, or other lack of livelihood in circumstances beyond his control.
Universal Declaration of Human Rights, 1948, Article 25, paragraph 1
45. In Singh, et al. v. Minister of Employment and Immigration (1985), the Court said;
“The right to security of the person means not only protection of one's physical integrity, but the provisions of necessaries for its support.
In Singh, et al. v. Minister of Employment and Immigration; [1985] 1 S.C.R. 177
46. In R. v. Morgentaler, Wilson J. wrote that "…the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life". The experiments in Holland (and now some places in Germany and Denmark) with the open sales of cannabis demonstrate what is "possible". These other countries have proven that one can reduce the crime rate, the drug abuse rate, the unemployment rate and increase tourism allowing these jobs to exist, available to anyone who can adhere to reasonable regulation.
R. v. Morgentaler, [1988], 1 S.C.R. 30 per Wilson, J. at p. 166, (S.C.C.)
Exhibit 3 – Defendant’s Submission in Support of Voir Dire, para. 27
CONCLUSION
48. To conclude, the issues of “cannabis harm reduction”, “responsible cultivation and distribution”, “equality for the users and producers of all substances”, should now be dealt with by this court and our country should set a new course for greater freedom and tolerance – with other countries soon following suit. We should take steps to avoid becoming one big prison, like the United States has become. We should set another good example for the US, as we have on the issues of slavery, women's right to vote, alcohol prohibition, Cuba, Vietnam, and the death penalty.
49. It is conceded, there may be a downside to cannabis re-legalization. Red eyes, sore throats, lost car keys - all possible results of increased use before "harm reduction" education takes hold. Regarding the “indirect costs”, we give the last word to Mill;
But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 82 of the Cambridge, 1989 edition.
PART IV
THE NATURE OF THE ORDER REQUESTED
50. The Applicant seeks an order granting his application for leave to appeal.
All of which is respectfully submitted.
Dated this 29th day of October, 2000. ______________________________
David Malmo-Levine
Appearing in person
C/o Conroy & Company
2459 Pauline Street
Abbotsford, B.C. V2S 3S1
Telephone: (604) 852-5110
Facsimile: (604) 859-3361
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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funglewood
(old hand)
11/8/00 07:47 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 75607
/ re: 62343
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any idea yet as to when your case is up? i'll be there, with or without bells and whistles...
fungle p. wood, esq.
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davidmalmolevine
(superposter)
11/9/00 00:22 AM
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Re: What I am trying to explain to the Supreme Court
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Nope.....I guess the judges will tell us in a month who gets to go....when, and on what arguments.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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funglewood
(old hand)
11/9/00 12:36 PM
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Re: What I am trying to explain to the Supreme Court
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dude, it's pretty twisted that one of the debators gets to choose the entirety of the subject matter for the debate...
talk about limiting the available choices, in order to be able to oppress, while maintaining the illusion of freedom! sheesh!
keep us posted, eh?
(btw - the spell-checker doesn't recognize "debator." stupid machine.)
fungle p. wood, esq.
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TaxPayer
(member)
11/11/00 12:21 PM
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Re: What I am trying to explain to the Supreme Court
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Thanks for the info. It's challenges like this that will someday free the plant. I now have a new P.C. term, "substance orientation".
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davidmalmolevine
(superposter)
3/10/01 11:24 AM
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Re: What I am trying to explain to the Supreme Court
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Substance Orientation is not "correct" so much as a fact of life - just like sexual preference.
People have been asking me about this so I'm bumping it to the front page.
I am confirmed, but as of this date Caine and Clay have not. John Conroy is hopeful everyone will get in.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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capricorn13
(stranger
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3/10/01 08:08 PM
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Re: What I am trying to explain to the Supreme Court
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Best of Luck Dave,
It's a shame that we as rational thinking persons have to go to such far reaching extremes to make a case that is so blatantly obvious. I hope you win your case; it would represent a giant step forward, toward true freedom, and away from the bigoted, hypocritical insanity that has gripped the minds of most people for most of the last century. I used to be so frustrated that people could think the way they do and what's worse, be led around by the nose by the a--hole politicians who would have the masses believing that shit was manna from heaven if they possibly could. As time has passed I am now convinced that the majority of humans are essentially non-thinking cattle like beings that can be easily herded and trained to jump through most any hoop so long as they are they are fed with the slop of the day and allowed to rut to their hearts content. And don't forget to sprinkle in a little self-righteous god-fearing my-way or the highway morality for good measure.
Where along the line of growing from childhood to an adult do most people sacrifice themselves to the "machine mind" of the corrupted society and let go of the innate common sense that they were born with and reasoned with as a child? I have one theory that what we are seeing here at this point in human evolution is the emergence of a higher form of homo sapien, one that thinks clearer, has an innate regard for the well being of his fellow beings and the earth, and has a greater longing to fulfill the potential of a meaningful life on earth, as well as our existence beyond this life. Further I believe that for the most part we are surrounded by evolutionary throwbacks, deadends, if you will, in the human species. There is a gulf, a chasm between us that for most cannot be crossed. We live and work among these people every day, but we might as well be light years apart. How can you bring enlightenment to a stone? We must continue moving forward on our journey, strengthening ourselves, and leaving the detritus of human kind to dissipate into the ether; they are of little consequence and have deliberately chosen their path into oblivion.
Peace
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Scurvy
(enthusiast)
3/12/01 05:44 AM
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Re: What I am trying to explain to the Supreme Court
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You're so right, capricorn13, humans are mostly herd animals, like so many lemmings or sheep.
You asked: "Where along the line of growing from childhood
to an adult do most people sacrifice themselves to the
"machine mind" of the corrupted society and let go of the
innate common sense that they were born with and reasoned
with as a child?"
I think I can answer that. I personally think it's high-school. Anyone not doing what everyone else is doing is disruptive and bad, and so is sent to the principal's office. They don't actually teach you anything useful for higher education, since everything I've heard and seen about universities tells me that they complain every year about the lack of preparation new high school graduates actually have. You learn about the caste system we have, with the "in" crowd, the "jock", and every other distinction, one of which you MUST belong to and everyone in that caste gets treated the same way.
I hope you're right about a new, higher homo sampeins (pun definately intended  ) evolving before our eyes, I just hope the non-evolved don't kill us all in fear, which is what they're trying to do.
--
Change the world!
http://www.lore.com/~scriven/Drugs/Cannabis/Letter_to_MP_2001
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MrOms
(member)
3/14/01 09:49 AM
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Re: What I am trying to explain to the Supreme Court
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David, could you argue(or is it somewhere already) that because it has been recorded in previous rulings on the subject of Marijuana, plus the LeDain findings, that they must put some burden of proof against the admissions of the court and the crown to the "benign nature" of marijuana and its effect on society. ****Man, I just smoked a fat gift from BC and wrote that, and now I forget what it was suppose to say****
Basically, previous rulings and transcripts indicate that Judges believe that Marijuana is not harmful and should not be a crime. If you have used these cases to support your own, shouldn't they have to discredit the information, much the same as an attorney would a witness?
Am I making sense? Woah! I feel great now!
Sorry David!
Damn, the reasonableness of your argument is so clear to me and I would think a lot of us here. It is hard to estimate the influence of personal opinion on these decisions!
Can I claim that as a buddhist I am not represented by the constitution that recognizes "...the Supremacy of God" above law?
Ooops! Brain farting hear. Sorry if I am being a bit goofy here folks, I just thought it might make sense.
If you don't like my fire,
Then don't come around,
'cause I'm gonna burn one down!
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davidmalmolevine
(superposter)
3/15/01 10:44 AM
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Re: What I am trying to explain to the Supreme Court
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"David, could you argue(or is it somewhere already) that because it has been recorded in previous
rulings on the subject of Marijuana, plus the LeDain findings, that they must put some burden of
proof against the admissions of the court and the crown to the "benign nature" of marijuana and
its effect on society."
Burden of Proof is one of John Conroy's pet projects......but most of the evidence given in Caine and Clay was the "latest and greatest" - only slightly biased by ignorance of cannabis harm-reduction techniques.....however - experts testified and Judge's recognised the existence of cannabis harm reduction.
"Basically, previous rulings and transcripts indicate that Judges believe that Marijuana is not
harmful and should not be a crime."
Basically, but they (LeDain, Shaffer etc) left room for doubt in lung damage and short-term impairment areas - without understanding cannabis harm-reduction fully, one might think those harms are inherent - and blow them out of proportion, as they have done.
" If you have used these cases to support your own, shouldn't
they have to discredit the information, much the same as an attorney would a witness?"
It all centers around cannabis harm reduction......if it exists - the constitution has already proven to protect harmless people.
" Damn, the reasonableness of your argument is so clear to me and I would think a lot of us here. It
is hard to estimate the influence of personal opinion on these decisions!"
The Judges? I wonder what factors come in to play myself.
"Can I claim that as a buddhist I am not represented by the constitution that recognizes "...the
Supremacy of God" above law?"
I'm not the resident authority on the Constitution and religion.....I would try to locate Ian Hunter for that one.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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FlashGordon
(old hand)
3/15/01 12:16 PM
Attachment
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CONGRATULATIONS DAVID!
[Post#: 105521
/ re: 62343
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The Laws For Possession Will Be Up For Review in Canada !
David malmo levines apeal to the supream court of canada which was already upheld by B.C. court of appeal has been accepted today by the supream court .
Reported today on cknw news
Details comming today on 420 news www.pot-tv.net
John Gordon http://www.bcmarijuanaparty.ca/c_john_gordon.htm Vancouver- Kensington .
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twistinjays
(superposter)
3/15/01 01:39 PM
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Re: CONGRATULATIONS DAVID!
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Was also mentioned on BCTV noon newshour. David is amazing! He's still handling his case himself isnt he?? Lawyers train for years for a chance to take cases in front of the supreme court, for them to grant David this appeal means they respect the fact that he is handling his case competantly.
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twistinjays
(superposter)
3/15/01 01:40 PM
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Re: CONGRATULATIONS DAVID!
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Well, maybe they don't respect his competence, but they can't ignore it!
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talisman
(newbie)
3/20/01 06:22 AM
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Re: CONGRATULATIONS DAVID!
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david:
here is the Church's website:
http://www.iamm.com
in potshot #13 Justice M. Drake states: "There's nobody who could give evidence on whether or not God is supreme in Canada"...on the surface of this Justice M. Drake seems to be in err. At least according to the Preamble of the Constitution and in the Letter of Proclamation of April 17,1982 in which it addresses:
ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, DEFENDER OF THE FAITH as definitive recognition of the Queen's Authority.
Rationale: If, Whereas Canada is founded upon principles that RECOGNIZES THE SUPREMCY OF GOD (and the rule of law) and the Constitution of Canada is the supreme law of Canada
it stands to reason that the Constitution of Canada MUST RECOGNIZE THE SUPREMCY OF GOD and the rule of law as unwavering principles. ANY LAW THAT IS INCONSISTENT WITH THE PROVISIONS OF THE CONSTITUTION IS TO THE EXTENT OF THE INCONSISTENCY OF NO FORCE OR EFFECT. The Government cannot have it both ways...if that is the case then they are in effect...criminal.
also for what it's worth the findings in Clay re: the racist foundations of Cannabis Prohibition constitute Discrimination and can be demonstrated to directly impact upon the current legislation therefore by extension the principles of harm reduction.
all the best,
Wayne
============================================================
On another matter check out
Strawman Strategies UCC-1 in Yahoo search:
http://www.militia-watchdog.org/redemption.htm
http://www.wealth4freedom.com/truth/2/strawman.htm
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davidmalmolevine
(superposter)
3/27/01 08:04 PM
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Re: CONGRATULATIONS DAVID!
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Bumpin this thread to the top.........been directing people to read it.....
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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davidmalmolevine
(superposter)
4/4/01 09:12 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 112460
/ re: 62343
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Bumpin......bumpitty bump bump. Top of the page....here we go.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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davidmalmolevine
(superposter)
4/11/01 10:22 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 115520
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Bumpin and grindin.
Attention! Anyone who wishes to help with the Supreme Court Challenge can just help me improve the following argument.....
Cannabis Harm Reduction. Does it exist? Does it mean that users, growers and dealers get sec. 7 and 15 protection?
All advice welcome - from critics and potheads, lawyers and lay people....as Chomsky says (serious paraphrase) - "as long as it sounds convincing, it doesn't matter how much 'education' the arguer has".....take me, for example. No degrees in anything (let alone law) and I get to the Supreme Court.
Fuck experts. And long live compelling argument from experience and insight.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond TutuEdited by davidmalmolevine on 4/11/01 10:26 PM.
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skellington
(enthusiast)
4/12/01 08:28 AM
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Re: What I am trying to explain to the Supreme Court
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my opinion
i dont know anything about constitutional law BUT if possession is constitutionally protected then there has to be a safe way to acquire pot...it might not be a constitutional issue but real justice would protect the right of people to grow small amounts for personal use or turn to a safe outlet to purchase pot grown by third parties...otherwise, pot smokers would still be exposed to the potential harm of the black market and people would still be going to jail for growing flowers
since health canada is starting a grow room inspection department, it wouldn't be that hard for them to extend the inspections to authorized suppliers of cannabis cafes (to ensure a safe supply of organic mould-free herb)...no need to inspect personal grows or regulate the sale of small amounts of herb from a personal garden which is really more of a concern for revenue canada (hobby income)
i don't know how you would frame that as a legal argument or even if it would be relevant in court to discuss low level regulation of the market...but i think its good to address the judge's potential concerns about harm to society from 'relaxed' cannabis regulations
i know a constitional lawyer who might offer some free advice...he read your appeal already but didn't have anything constructive to say...gimme a couple of weeks to get back to you on this
in the meantime, could you post something here about sec 7 and sec 15 so i don't sound too stoopid when i ask him?
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davidmalmolevine
(superposter)
4/12/01 02:08 PM
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Re: What I am trying to explain to the Supreme Court
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Canada's Constitution
(an excerpt)
Part I Schedule B
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental Freedoms
2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
Democratic Rights
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members. (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.
5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.
Mobility Rights
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on acc ount of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offense and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
14. A party or witness in any proceedings who does not understand or speathe language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Equality Rights
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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Shade
(journeyman)
4/13/01 11:02 AM
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Harm Principle v. Cannabis Harm Reduction
[Post#: 116004
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The courts found the "harm principle" as something they must look at in analyzing section 7 cases in determining the issue surrounding fundamental justice. I don't see where they take it beyond that to a Cannabis harm reduction principle, except for the purpose of mitigating sentencing. But it is an excellent issue to explore. See Marcus Richardson case.
I assume you to mean, "must the court consider a defendant's harm reduction techniques as part of his defense?"; and if so "where does this fit in the section 7 analysis equation?"
From Clay:
"The harm principle as a principle of fundamental justice
evokes many of these concerns when it is taken out of the context
from which it is derived. While it is a good basis for
legislative policy, a helpful guide for the exercise of
discretion by prosecutions and an important principle for judges
in exercising discretion in sentencing, it is a difficult
principle to translate into a means of measuring the
constitutionality of legislation. For example, how much harm is
sufficient to warrant legislative action? And, can the harm
principle be applied outside the mens rea area in a manner that
yields an understandable result?
[26] In R. v. Malmo-Levine, [2000] B.C.J. No. 1095, the British
Columbia Court of Appeal was presented with virtually the same
arguments made in this case. In a thoughtful treatment of this
difficult question, Braidwood J.A., speaking for himself and
Rowles J.A., concluded that the harm principle is a principle of
fundamental justice within the meaning of s. 7. He concluded,
however, that the marihuana prohibition in the former Narcotic
Control Act is consistent with the principles of fundamental
justice.
[27] Braidwood J.A. described the harm principle at para. 138 as
“whether the prohibited activities hold a ‘reasoned apprehension
of harm’ to other individuals or society”. He also held that the
degree of harm must be neither insignificant nor trivial. He
rejected a higher test suggested by Prowse J.A. in her dissenting
reasons. She held at para. 177 that the harm must be of a
serious, significant or substantial nature.
[28] I am prepared to accept for the purpose of this appeal that
a harm principle is a principle of fundamental justice in the
terms suggested by Braidwood J.A. I do not agree with the higher
test propounded by Prowse J.A. which, in my view, could lead to
an unjustifiable intrusion into the legislative sphere.
Moreover, the principle, as derived by Braidwood J.A., appears to
be consistent with the argument made by the appellant in this
court, which in turn was based on some of the language from R. v.
Butler, [1992] 1 S.C.R. 452. In that case, Sopinka J., in
applying s. 1 to the alleged violation of freedom of expression
from the obscenity prohibition in the Criminal Code, held at p.
504 that a rational connection between the impugned measure and
the objective of the legislation was made out if Parliament had a
“reasoned apprehension of harm”. Later he held at p. 505, in
applying the minimal impairment test, that it was sufficient that
the prohibited material “creates a risk of harm to society” and
“that it is sufficient in this regard for Parliament to have a
reasonable basis for concluding that harm will result and this
requirement does not demand actual proof of harm”.
[29] Finally, it seems to me that the test, as articulated by
Braidwood J.A., is consistent with Sopinka J.’s discussion in
Rodriguez about the principles of fundamental justice. Sopinka
J. held that in determining whether the legislation was
consistent with the principles of fundamental justice, it was
necessary to consider the state interest and at pp. 593-94 he
referred to the reasons of McLachlin J. in Cunningham v. Canada,
[1993] 2 S.C.R. 143 at 151-52:
The principles of fundamental justice are concerned
not only with the interest of the person who claims
his liberty has been limited, but with the protection
of society. Fundamental justice requires that a
fair balance be struck between these interests, both
substantively and procedurally… [Emphasis added.]
[30] In Cunningham at p. 151, McLachlin J. had also held that the
“Charter does not protect against insignificant or ‘trivial’
limitations of rights”.
[31] Finally, the harm principle as articulated by Braidwood J.A.
is not unlike a principle of fundamental justice described by
Sopinka J. at pp. 594-95 of Rodriguez. He held that where the
“deprivation of the right in question does little or nothing to
enhance the state's interest (whatever it may be), it seems to me
that a breach of fundamental justice will be made out, as the
individual’s rights will have been deprived for no valid
purpose”. Similarly, if the marihuana prohibition, which risks
depriving the appellant of his liberty, does little or nothing to
enhance the state’s interests because there is no rational basis
for finding that marihuana use is harmful, there is a breach of
fundamental justice.
[32] As Sopinka J. said at p. 596 of Rodriguez, the determination
whether substantive legislation is consistent with the principles
of fundamental justice requires “an analysis of our legislative
and social policy … to determine whether fundamental principles
have evolved such that they conflict with the validity of the
balancing of interests undertaken by Parliament.” I need not
engage in an extended discussion of this issue since I agree with
the findings of McCart J. at trial and much of the analysis of
Braidwood J.A. in Malmo-Levine.
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Shade
(journeyman)
4/13/01 12:13 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 116024
/ re: 116004
]
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When I hear harm reduction, two models come to mind: 1)needle exchange programs: (Cannabis med. clubs and harm reduction clubs would fall in this model); 2) decriminalization (not legalization, the Netherlands comes to mind)
If you are plugged into the compassion clubs, the courts have already decriminalized trafficking if Marcus Richardson is an indication of the law of Canada:
"Some patients will have to secure their medicinal marihuana from some kind of retail outlet. Those in need of other drugs, the possession of which for recreational purposes is prohibited, may get those from their neighborhood pharmacy. The pharmacy in this case, known to and tolerated by the police, is the Compassion Club Society. Marihuana will not fall into its hands as manna from heaven. It must be obtained either directly from growers, as is now the case, or through a middleman, such as Mr. Richardson, as was the case in November of 1998.
In my view, no serious distinction can be drawn between Mr. Parker, who grew his own, and the grower, the wholesaler and the retailer who provide the drug to persons, like Mr. Parker, who are in medical need."
*******
The defense presents itself as just that, a defense to a specific charge in a specific case. It is not a wholesale dissolution of the Drug Control Acts. It is a case by case approach.
It also opens the door for close scrutiny by policy makers to cut the policy deal that would bring about the "Harm reduction club" co-existence with other programs such as needle exchange etc.
The Court's have trouble with dealing with the harm reduction principle on a case by case basis, as seen in Clay:
"In Rodriguez v. British Columbia (Attorney General) at p.
590, Sopinka J. cautioned that the court must be careful that the
principles of fundamental justice do not become principles in
“eye of the beholder only”. As he said at pp. 590-91:
Principles of fundamental justice must not,
however, be so broad as to be no more than
vague generalizations about what our society
considers to be ethical or moral. They must
be capable of being identified with some
precision and applied to situations in a
manner which yields an understandable result.
[25] The harm principle as a principle of fundamental justice
evokes many of these concerns when it is taken out of the context
from which it is derived. While it is a good basis for
legislative policy, a helpful guide for the exercise of
discretion by prosecutions and an important principle for judges
in exercising discretion in sentencing, it is a difficult
principle to translate into a means of measuring the
constitutionality of legislation. For example, how much harm is
sufficient to warrant legislative action? And, can the harm
principle be applied outside the mens rea area in a manner that
yields an understandable result?"
Yet, I don't see any way around being able to present the Cannabis harm reduction principle except within the confine of a case-by-case affirmative defense under the test articulated by Justice Prowse, (dissenting) in Malmo-Levine, or mitigating factor as in Marcus Richardson. Note also however that Braidwood, J.A. called the balancing act he conducted under a less favorable test as a "close call" that went against Malmo-Levine.
Mens rea is also weighing heavily on the justices mind. These defendants clearly do not believe they are doing anything wrong. Perhaps that should be exploited further?
In Harding v. Price, [1948] 1 K.B. 695, Goddard C.J. said,
at p. 700:
"The general rule with respect to criminal cases
is actus non facit reum nisi mens sit rea, and I
venture to repeat what I said in Brend v. Wood
(1946), 62 T.L.R. 462, 463: `It is of the utmost
importance for the protection of the liberty of the
subject that a court should always bear in mind that,
unless a statute either clearly or by implication
rules out mens rea as a constituent part of a crime,
the court should not find a man guilty of an offence
against the criminal law unless he has a guilty
mind'."
A perfect example of this would be seedsales. No statute has ever expressly made viable seed sales illegal. How could someone then possess the requisite mens rea to commit the offense implicated?
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davidmalmolevine
(superposter)
4/13/01 12:44 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 116031
/ re: 116004
]
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"The courts found the "harm principle" as something they must look at in analyzing section 7 cases in determining the issue surrounding fundamental justice. I don't see where they take it beyond that to a Cannabis harm reduction principle, except for the purpose of mitigating sentencing."
Look, it's very simple. It has nothing to do with sentancing and everything to do with the unconstitutionality of the law.
The harmless are protected by section 7 (and perhaps section 15). That's a fact.
Now, the only thing to do is separate "risks" from "inherently harmful actions" and discribe the harms associated with cannabis as "non-inherent". The harm-reduction strategies render the acts of growing, smoking and using harmless, thus the constition would render all the current laws around cannabis a violation of the harm principle. The laws would have to be struck down.
This has nothing to do with sentancing.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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davidmalmolevine
(superposter)
4/13/01 12:56 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 116034
/ re: 116024
]
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"When I hear harm reduction, two models come to mind: 1)needle exchange programs: (Cannabis med. clubs and harm reduction clubs would fall in this model); 2) decriminalization (not legalization, the Netherlands comes to mind)"
Hmmmm......legalization and regulation (similar to caffeine and herbs are today) come to mind to me and anyone else who isn't on an "unnecessary monopoly" trip. Why don't they occur to you, Shade?
As for the Dutch, it isn't even "decriminalized" there......a "sub-legal" regulation framework appears in the prosecutors guidelines, but presumeably all that would be necessary for the Dutch to start busting potheads is a quick change of the prosecutors guidelines. I'm fighting for much more freedom and dignity than the Dutch have.
"If you are plugged into the compassion clubs, the courts have already decriminalized trafficking if Marcus Richardson is an indication of the law of Canada:"
Marc got busted and then escaped punishment. I am fighting for the right not to be busted in the first place. "Decrim" simply means "no criminal record" - which is different than "no punishment" - what I am fighting for.
"Some patients will have to secure their medicinal marihuana from some kind of retail outlet."
Compassion clubs for sick people, cannabis cafe's for healthy people.
"Those in need of other drugs, the possession of which for recreational purposes is prohibited, may get those from their neighborhood pharmacy. The pharmacy in this case, known to and tolerated by the police, is the Compassion Club Society."
Pharmacies have connotations of synthetic drugs and monopolies. The compassion club is anti-synthetic. They are closer to a herbal dispensary than a pharmacy.
*******
The defense presents itself as just that, a defense to a specific charge in a specific case. It is not a wholesale dissolution of the Drug Control Acts. It is a case by case approach. "
The Richardson case......but in my case, I have set my sites a bit higher.
I'm going for the whole cookie.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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Shade
(journeyman)
4/13/01 01:41 PM
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Harm Principle v. Cannabis Harm Reduction
[Post#: 116047
/ re: 116034
]
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"I'm going for the whole cookie."
Yeah, I know.
Prowse and her opinion is the only hole whereby I see a shot for your high ambition. Please excuse my honest appraisal. But even if Prowse takes hold, would that dissolve whatever statutes exist, or just present a case-by-case harm principle/Harm reduction principle jurisprudence, which you are not satisfied with. The Courts are stuck with the existing jurisprudence. That's the way it works. Prowse is the only justice that has even slightly budged. And that is more of the decriminalization, not legalization aspect of the cases you represent. Parliament and local policy makers is where the courts point to for legalization, the upcoming changes for rec. use and trafficking etc. But they are troubled with mens rea and the source dilemma.
Needle exchange is not being curtailed. What distinguishes it from cannabis harm reduction clubs? Sale of the drug itself?
A symposium just concluded in Wash. DC where representatives of EU drug control member states made it clear that the Netherlands policy is a specie of decriminalization, NOT legalization. Yet you correctly point out the distinction is hard to see. You start seeing it when you begin to stray from the containment parameters set up by the policy.
No easy answer except take the ground given by the courts, secure it and then improve on it, you don't have to make it all or nothing to argue it should be all. But emphasize the ground under real contention that is being overlooked.
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talisman
(journeyman)
4/13/01 06:19 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 116130
/ re: 116047
]
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Re:"I'm going for the whole cookie."
I think an important element that must be kept in mind is the mens rea (the wrongful purpose aspect) factor of Cannabis Prohibition per se as the driving element of its inclusion and implementation in and of the CDSA in relation to and as applicable under s.32(a)(b) relative to s.31 and
therefore s.52(1) in relation to the impact on all relevant freedom sections.
Perhaps I'm way out on a limb on this one, but I think that if this aspect can be introduced - by demonstrating the above based on the judicial findings i.e. Hunter, Clay, Parker, Richardson etc. and the introduction of D. Larsen's material which he accessed only under the Freedom of Information Act. i.e. "What the Gov't won't Disclose", the New Scientist article on "UN & WHO conspiracy to cover-up unbiased research findings", and other relevant parallel material and court findings, i.e. the cases surrounding abortion, same sex practice, etc. - a case demonstrating the deliberate and wilful intent to discriminate and persecute can easily be established.
If this can be recognized and considered by the court I think that inclusion of Cannabis within the CDSA will become the longest running footnote in the annals of Canadian (and US) history.
Am I out on a limb on this ?
BTW, insightful discussion...to all...thanks
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Shade
(journeyman)
4/14/01 11:09 AM
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Court's have set precedent
[Post#: 116348
/ re: 116024
]
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@Talisman:
Mens rea= guilty mind in the criminal context, not wrongful purpose in a parliamentarian context.
Your thoughts would fall under a "arbitrary and capricious" enactment attack imo. The smoking gun is the element that seems to be lacking in these attacks. Section 52(1)?
When faced with the dueling expert witness before congress or the court, a certain deference to parliamentary competence is employed. Hard to accept by well informed opposition.
@Malmo-Levine
I would ask that you review my comments without reading more into what is actually there.
Use is not prohibited, possession and trafficking is. Inherent harm in use is irrelevant. But I don't see the court's catching onto that distinction. The harms caused by unregulated trafficking and cultivation and preparation are admitted by you. That alone raises the question as to competence of the parliament to enact statutes that prohibit possession and distribution because of these admitted potential harms caused by growers, dealers and traffickers. I see the argument prohibiting criminal sanctions to end users, but not freeing up dealers and growers disconnected to harm reduction intervention programs already discussed in Richardson and Parker. Where do you see a constitutional restriction on parliament from protecting consumers from unscrupulous manufacturers and growers?
There are two basic ways law changes; 1) parliamentary enactment 2) common-law evolution.
Most of the arguments you interject to seize "the whole cookie" are appropriate in front of the parliamentary bodies. You are not in front of those bodies.
When hoping to make new "case law", and as a consequence dissolve as unconstitutional existing statute, you must look at the evolution of the jurisprudence involved.
When we talk about the constitutionality of simple possession, we see Parker and Richardson as good models to build from. My comments above are strictly with that in mind. Trafficking has been decriminalized for purposes related to harm reduction i.e. med use. Yes, they currently are forms of absolute defense to Drug control laws, or mitigation of (decriminalization) of sentencing. The whole idea as to where to go from here entails extending the line of cases (jurisprudence) to include personal use and sources, and from decriminalization to legalization.
I am sure you will become less antagonistic once you fully grasp what is going on legally. Your harm reduction arguments do nothing but reinforce the notion that parliament has the competence to do what it pleases when we talk about recreational use of Cannabis. It allows the untested myths to come into play. Focusing away from the areas that have succeeded in the recent past makes no sense if you wish to have the case law evolve the way your rhetoric indicates.
Decriminalization is NOT simply defined as "not having a criminal record." Perhaps you should check Lindesmith out for a neutral definition, one you might respect, if you don't respect anything I offer. Decriminalization means "no incarceration" and disposition outside the criminal court arena. Drug Courts do not qualify from a technical standpoint so long as incarceration is a factor. Case law that precludes incarceration as a deterrent for an offense technically does meet the definition.
That is the kind of misinformation you unintentionally give out. You did that with your former claim on the evolution of the necessity defense and Netherlands decriminalization/legalization. In matters of a technical nature, the devil is in the detail. Again I'm sorry to bring you this news. You, being a professional activist, politician and journalist, should be encouraged to be more accurate with the terms you purport to understand. People look to you for answers.
Section 7 challenge along the lines of Prowse's opinion are the best shot for making a case for unconstitutionality. A clear choice between two competing tests which make up the difference in outcome of the case is before the court. Decrim is the best hope; affirmation of the decision below is the likely outcome in the Supreme Court cases because the appellants seem to be losing track of what really is being seriously contested; and I'll take wagers from anyone convinced that the court will overrule the court below.
Section 15, imo, applies to people being equal under the law, not consumer products being equal under the law. Germany, to my knowledge, is the only country that varied, and that was a lower court.
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talisman
(journeyman)
4/14/01 12:25 PM
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Re: Court's have set precedent
[Post#: 116374
/ re: 116348
]
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Shade: 1. Either, you didn't take the time to read my post or 2. you didn't grasp the concept of what I was indicating.
In either case go fuck yourself. You state: "You, being a professional activist, politician and journalist, should be encouraged to be more accurate with the terms you purport to understand. People look to you for answers."
1. I am neither a professional activist, a politician or journalist and nobody looks to me for shit, ok. You fucking jerk!
2. In that I was only ASKING whether the line of reasoning of what I laid out was feasible i.e. "Am I out on a limb on this?" What part of that was unclear...never mind.
I no longer wonder where you are coming from. You need to pluck your pontificating head out of your ass long enough to grasp some fresh air. And then get off your armchair platform long enough to take your halfwit platitudes and go fuck yourself and the dog and pony show you rode in on.
While you may present interesting points of reference, your hackneyed drivel is today what it will be tommorrow...yet one more example of a wannabe armchair critic.
You've gone to considerable lengths to present to David notions that, if were as relevent as you'd think them to be, I'm sure his legal people would have them pointed
out. And then you are actually sufficently obtuse as to digress into your "Trafficking has been decriminalized for purposes related to harm reduction i.e. med use nonsense
yet one more time. I suggest you blow it out your ass...plug your ears first though, you might end up running on empty.
Mens rea= guilty mind in the criminal context, not wrongful purpose in a parliamentarian context. Right.
It is obvious that I gave you far more credit than you deserve asshole.
.
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Shade
(journeyman)
4/14/01 12:33 PM
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Re: Court's have set precedent
[Post#: 116376
/ re: 116374
]
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Hey Talisman
At the point I posted "@Malmo-Levine", I stopped addressing your post. So go fuck yourself you imbecile. Obviously I wasn't addressing you dumbfuck.
In any event I was too kind in my response to your ignorant post. Out on a limb doesn't begin to describe your nonsense. Over your head maybe.
David has no legal people; and he admits to having strategic differences with the Conroy team. You assume too much. Any wagers from the cheapseats? And maybe you should put the pipe down long enough to distinguish who is being addressed in this forum. The whole problem with david's approach is that he is an amateur, and lack's fundamental legal training to even grasp the relevant serious issues in front of the court. In that failing, he risks presenting a bad case; the old saying being "bad cases make bad law". Again, you are hypocrites if you believe you actually further the cause by posing as experts under the guise of the Emery capitalistic endeavor. Colorful clowns at rallies, but not serious activists. You lack fundamental familiarity with the technical side of the war. What is so difficult about that, you flaming fuckwad.
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rastaruss
(member)
4/14/01 01:20 PM
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Re: Court's have set precedent
[Post#: 116396
/ re: 116348
]
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A couple of things.
Use IS prohibited, in so much as a positive piss test after accusation of driving "impaired" will be considered proof of impairment, despite actual impairment or not.
Secondly, decriminalization is generally (in this context) defined as any reduction in punishment as codified in law, therefore making it less criminal, but criminal nonetheless. Legalization would mean they have no reason to arrest/harass me. I vote for legalization.
This "whole cookie" issue is clear to me too. If the laws are declared unconstitutional by the court, then the laws are ELIMINATED. This is legalization in my books. The government then has the choice of writing new laws or just leaving well enough alone.
Even if Malmo-Levine loses, but Caine, Clay win, the laws are still unconstitutional. I think we're arguing semantics here, now. I honestly don't care if precedent is set or not. If the courts rule in favour of any of them I feel we'll be in the clear. If it is legal to possess then distribution will only be an issue for parliament to codify separately. We don't need a law that tells us potatoes are legal to possess. Why would we need one for hemp?
And Talisman, take a chill pill. I'd have said that this discussion had achieved a modicum of decorum again (depite my own previous rantings) until you shit all over Shade again. His arguments are worth a listen, if only to clarify the case. If he can poke holes, so can we. Every little bit helps. I don't think Shade is necessarily trying to convince everyone that David is going to lose, but is trying to help him win by playing devil's advocate (and he does).
Good luck David.
"The more people smoke herb, the more Babylon fall" - The Honorable Robert Nesta Marley, O.M.
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Shade
(journeyman)
4/14/01 01:42 PM
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Re: Court's have set precedent
[Post#: 116406
/ re: 116396
]
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@Rastaruss
Thank you! I half expected David to build on the flame.
I agree with what you say to a certain point. As to "use" in the real world sense of course you are correct. Evidence of smell used against someone to prove whatever...but when narrowing legal argument, harm principle discussed by the opposition goes beyond inherent harm of cannabis, or cannabis harm reduction discussed by David. I take David's solicitation as a challenge to find a niche for his Cannabis Harm reduction argument in the constitutional challenge. I find it as an inherent affirmative defense on a case by case basis if you follow the lead of Richardson and Parker, and the test set out by Prowse in her dissent just to get that far; not one that necessarily requires legalization either. But you truly are asking for the near impossible from a jurisprudence POV.
As to the Context of Decrim being simply a reduction of sanctions, I was not viewing it as such. That would explain a lot of the miscommunication. I have never really thought of it that way, having been strictly taught that it is meant to mean removing it from the criminal arena altogether. Good point. I can see how it could easily be intended to mean both. When I use the term, I mean strictly that incarceration is not a possible sanction. Thanks for your clarification.
Nothing in Parker prevents the parliament from rewriting the statutes before or after the deadline set by Parker.
Similarly, Caine/Clay/Malmo-Levine, if the court chooses to mimic the remedy in Parker, which I seriously doubt, but is definitley possible, the parliament simply replaces the statute with prohibitions against trafficking and growing etc. Setting up the next generation of test cases hindered by whatever bad precedent may be set in the Malmo-Levine trafficking challenge.
My advocacy stresses efficiency of process, both judicially and legislatively, more than it seeks to disagree with David's philosophy on harm reduction. I think if there is a strong opinion in favor of decriminalization/legalization of simple possession, I would suggest that's when a return to policy focus would be most productive. A loss as to trafficking may delay indefinitely that process. Ultimately it will be policy changes in legislation/enforcement that gives David the cookies he seeks. The case law seems real clear on this. A decrim. (not legalization) win for simple possession gives leverage toward that being sooner than later. All efforts should focus on that narrow window. Everything else is bully-pulpit politics. I know impatience is a stress, but magical thinking won't get it done either.
And of course I hope for the very best for David and all others fighting for legalization in our lifetime.
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Edge
(stranger)
4/15/01 09:30 AM
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Harm Principle
[Post#: 116695
/ re: 116024
]
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Decriminalization: An official act generally accomplished by legislation, in which an act or omission, formerly criminal, is made non-criminal and without punitive sanctions. Black's Law Dictionary.
Try using the dictionary once in awhile.
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rastaruss
(member)
4/15/01 06:20 PM
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Re: Harm Principle
[Post#: 116914
/ re: 116695
]
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Why don't you bite my ass?
Why then were New York state's changes to marijuana laws called decriminalization? By reducing the penalty from prison to only a fine the act of possession was "decriminalized" so instead of arresting and prosecuting thousands they were able to prosecute tens of thousands?
There is a distinction between legalization and decriminalization. Why don't you read some history?
"The more people smoke herb, the more Babylon fall" - The Honorable Robert Nesta Marley, O.M.
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Shade
(journeyman)
4/16/01 09:35 AM
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Re: Harm Principle
[Post#: 117181
/ re: 116914
]
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It makes sense. Textbook and real world don't always jive. Netherlands, although they say decrim, there are still punitive sanctions outside the containment policy. I agree there are two different contexts. Decrim can be used as lessening of sanctions as well as elimination according to recent usage. Fuck Black's Law.
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davidmalmolevine
(superposter)
4/16/01 06:12 PM
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Re: Harm Principle
[Post#: 117439
/ re: 117181
]
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Decrim is the fave term of both Singapore and the US....I say fuck decrim and call the new place ****what you want to see happen****.....
Like my man Beck sings......"we gotta REGULATE!"
(Legalize is an old term....nothin wrong wit it, but I say let's loose the baggage and move to deflate unfounded fears at the same time....)
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond TutuEdited by davidmalmolevine on 4/16/01 06:13 PM.
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davidmalmolevine
(superposter)
4/16/01 06:45 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 117459
/ re: 116047
]
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Prowse and her opinion is the only hole whereby I see a shot for your high ambition. Please excuse my honest appraisal. But even if Prowse takes hold, would that dissolve whatever statutes exist, or just present a case-by-case harm principle/Harm reduction principle jurisprudence, which you are not satisfied with.
I don't understand this question (if it was meant as one.....)
The Courts are stuck with the existing jurisprudence. That's the way it works.
Except when they change their minds.......see "medical cannabis necessity".
"Prowse is the only justice that has even slightly budged. And that is more of the decriminalization, not legalization aspect of the cases you represent."
CAll it what you will, the Supremes have decided to hear MY WHOLE ARGUMENT....they could have limited me to "simple possession" but I submitted my "additional grounds" and they said "let's hear it".
I grew up with one of the SCC clerks in Edmonton, and he said my factum rocked.
Every non-anonymous person in the movement who has read it agrees that the harm is where the focus should be. Inherent harms vs. proper use.
Even the polls for the POT TV show on the subject suggest the "home audience" is backin me.
Lessee, that was "phone a friend" and "the audience poll"..... If this was "Who wants to be a millionare, I'd say "Final Answer".
"Parliament and local policy makers is where the courts point to for legalization,"
Except with the med thing....which they just gave the weasles an ultimatum.
"....the upcoming changes for rec. use and trafficking etc. But they are troubled with mens rea and the source dilemma."
Nobody got them to recognise the harm principle before. No one got to the SCC before on a challenge of all the laws. I wouldn't say we were for sure going to win....but if justice has anything to do with it I'd say we have enough of a chance to give it the old colledge try.
"Needle exchange is not being curtailed."
It ain't protected either. And it the states, Gulliani-type mayors do curtail even education, let alone clean needles.
"What distinguishes it from cannabis harm reduction clubs?"
Well, they kept throwing me in jail for the HRC....I want both services to be recognised as valuable and fully protected by law and, eventually, a re-writing of the constitution to say, explicitly, "for example, the harm principle" in section 7 and say "sexual and substance and vocation orientation and as many other harmless deviants as possible" for section 15.
I think needle exchanges have yet to be fully defended in the court of public opinion. Same with poor people growing and dealing pot to healthy people. But when both are, both will be fully accepted into society.
"Sale of the drug itself?"
You might have a point there......they do tend to get pissed off if you make money while you monkey wrench their witch hunt......
"A symposium just concluded in Wash. DC where representatives of EU drug control member states made it clear that the Netherlands policy is a specie of decriminalization, NOT legalization."
I don't care what they call it.....I just want at least as much freedom as they currently enjoy with the added bonus of full equality rights with caffeine junkies and I won't stop till I get it.
" Yet you correctly point out the distinction is hard to see."
Especially through the billowing smoke at one of the 2000 cafe's in Holland, the thousand in Denmark, the handfull in Belgium and Switzerland.....
"You start seeing it when you begin to stray from the containment parameters set up by the policy."
Let's hear it for straying from containment perameters....
"No easy answer except take the ground given by the courts, secure it and then improve on it, you don't have to make it all or nothing to argue it should be all."
Shade, buddy, this is a 3000 year old war on the herbally inclined, and it's gonna end soon so I can still enjoy the taste of freedom in my youth.
"But emphasize the ground under real contention that is being overlooked."
Harm reduction protects poor growers/dealers and healthy smokers. Harm reduction is the key that was missing in the past cases.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond TutuEdited by davidmalmolevine on 4/16/01 07:38 PM.
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davidmalmolevine
(superposter)
4/16/01 07:33 PM
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Re: Court's have set precedent
[Post#: 117496
/ re: 116348
]
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@Talisman:
De-harsh, dude.
@Shade
I would ask that you review my comments without reading more into what is actually there.
Render unto me a break and provide instances with your general slags....
"Use is not prohibited, possession and trafficking is. Inherent harm in use is irrelevant."
But if proper use is harmless, then it's constitutionally protected! Very relevant.
"But I don't see the court's catching onto that distinction. The harms caused by unregulated trafficking and cultivation and preparation are admitted by you."
Pritty important qualifyer, that "unregulated"....
"That alone raises the question as to competence of the parliament to enact statutes that prohibit possession and distribution because of these admitted potential harms caused by growers, dealers and traffickers."
They're only unregulated so long as we don't regulate em....when they are regulated, they become, like in europe, "harmless, helpful, taxpaying parents"
"I see the argument prohibiting criminal sanctions to end users, but not freeing up dealers and growers disconnected to harm reduction intervention programs already discussed in Richardson and Parker."
Have you even been to holland? What makes you think North America can't handle that?
"Where do you see a constitutional restriction on parliament from protecting consumers from unscrupulous manufacturers and growers?"
What's the difference between an "unscrupulous" cannabis distributor and an "unscrupulous" coffee bean distributor? Well, one has enough money to escape punishment in the black market, the other, at least, has some accountability that can be used to sic the law on them if they poison someone or steal something.
"There are two basic ways law changes; 1) parliamentary enactment 2) common-law evolution."
I guess Paker was "common-law evolution".
"Most of the arguments you interject to seize "the whole cookie" are appropriate in front of the parliamentary bodies. You are not in front of those bodies."
Parliamentary bodies had their chance. Parliamentary bodies couldn't do fuck all with a million-dollar report in front of them. Parliamentary bodies don't understand the harm principle, nor do they seem obligated to. I say, let's try the judges this time.... if they don't kick down the freedom, at least we can say we exausted that avenue.
"When hoping to make new "case law", and as a consequence dissolve as unconstitutional existing statute, you must look at the evolution of the jurisprudence involved. "
Fuck that. None of them had harm reduction arguments. I say, lets try that route ..... seems like it was "custom made" for it.....considering Mill's On Liberty and how much of the book seems to anticipate drug prohibition and alcohol prohibition.
"When we talk about the constitutionality of simple possession, we see Parker and Richardson as good models to build from."
I think they suck.
" My comments above are strictly with that in mind. Trafficking has been decriminalized for purposes related to harm reduction i.e. med use."
Medical necessity and harm reduction are two different arguments.
"Yes, they currently are forms of absolute defense to Drug control laws, or mitigation of (decriminalization) of sentencing. The whole idea as to where to go from here entails extending the line of cases (jurisprudence) to include personal use and sources, and from decriminalization to legalization."
You must be very old to be so comfortable and patient for the rest of us.
Paraphrasing MLK JR "How can you set the timetable for another man's freedom?"
"I am sure you will become less antagonistic once you fully grasp what is going on legally. Your harm reduction arguments do nothing but reinforce the notion that parliament has the competence to do what it pleases when we talk about recreational use of Cannabis."
How does limiting them to criminalizing harmful behavior do that?
"It allows the untested myths to come into play."
By all means, let's test the myths.
"Focusing away from the areas that have succeeded in the recent past makes no sense if you wish to have the case law evolve the way your rhetoric indicates."
It makes sense if you wanna see poor people grow and deal before you die.
"Decriminalization is NOT simply defined as "not having a criminal record." Perhaps you should check Lindesmith out for a neutral definition, one you might respect, if you don't respect anything I offer. Decriminalization means "no incarceration" and disposition outside the criminal court arena."
In singapore, they make similar distinctions.....kind of makes it sound nicer......."I'm not a criminal, I have BEHAVIORAL PROBLEMS.....I'm SICK."
They said the same thing about homosexuals before those folks finally won some dignity.
"Drug Courts do not qualify from a technical standpoint so long as incarceration is a factor."
We wern't talking technical, we were talking "day to day" usage....they're trying to sell drug courts as "decrim" in Canada.
"Case law that precludes incarceration as a deterrent for an offense technically does meet the definition.
That is the kind of misinformation you unintentionally give out."
This is the kind of misinformation the state gives out. See my article: "Decrim, Singapore Style" in the back issues section of www.cannabisculture.com - issue #26.
"You did that with your former claim on the evolution of the necessity defense and Netherlands decriminalization/legalization. In matters of a technical nature, the devil is in the detail. Again I'm sorry to bring you this news."
None of this seems to be "poking holes" in the harm reduction argument, so I don't really see why you're gloating.
"You, being a professional activist, politician and journalist, should be encouraged to be more accurate with the terms you purport to understand."
You, being an anonymous armchair critic, shouldn't break your arm patting yourself on the back. You convinced of one thing, if anything, that no matter how clear you make something, there's always someone out there who isn't satisfied. Instead of arguing facts (something you seem to be weak on) you keep saying "harm reduction" ain't the way to go!
But you are so so so so so wrong on that. You are grasping at straws and not bringing out any coherent argument, just nit pickin every little thing you can.
"People look to you for answers."
I hope I have provided some people with them. You seem terrably hard to satisfy.
"Section 7 challenge along the lines of Prowse's opinion are the best shot for making a case for unconstitutionality."
That's crazy talk. Why would I spend time arguing about if (in Prowse's words) cannabis use inherently had a "signifigant" harm or a "trivial" harm if the evidence suggests improper use is harmful (and potentially deadly with heavy machinery) and, when used properly, harmless?
"A clear choice between two competing tests which make up the difference in outcome of the case is before the court. Decrim is the best hope; affirmation of the decision below is the likely outcome in the Supreme Court cases because the appellants seem to be losing track of what really is being seriously contested; and I'll take wagers from anyone convinced that the court will overrule the court below."
I don't bet with anonymous flack throwers. And a slave who asks for wippings instead of beatings is still a slave.
"Section 15, imo, applies to people being equal under the law, not consumer products being equal under the law."
Ya. People, like those who use and deal stimulants, relaxants and euphoriants.
"Germany, to my knowledge, is the only country that varied, and that was a lower court."
Just because someone in the heart of the last witchhunt had the courage to speak the truth in a sea of present witchhunters, does not make that truth any less real. We should not scold the judge for being the single voice of reason, we should be amazed that the voice even exists at all...... the professionals being, for the most part, the most cowardly of humans.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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Shade
(journeyman)
4/17/01 03:07 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 117897
/ re: 117459
]
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@David
If your posts are any indication, I'm sure you would be dangerous with a shotgun. But the "shotgun" approach usually signals some weakness in the jurisprudence.
Re: Your friend SCC clerk on the Factum: "It Rocks!". Well, that surely is enlightening. Answers all of my doubts.
I have never said harm reduction is not the way to go. I suggest using your case right now to challenge trafficking under harm reduction is not strategically sound. I understand that being unrepresented and this being your "baby" if you will creates a sensitivity in you that makes it tough to discern devil's advocacy from the devil himself.
Given Rastaruss' clarification on the use of the term Decrim., I concede we are trifling with semantics. I took a strict interpretation, you used a loose interpretation, nothing was gained in the exchange.
I did note the incident where the feds mandated BC to stop prosecuting simple possession in '95 as a flagrantly false signal and agitant when thereafter RMCP did just the opposite in their selective prosecution of certain pockets of contained usage.
I also note the frustration in parliament's failure to act on policy reform.
Med use as a test case had no existing precedent under the charter, it was an evolution, an extension, not a change of mind or jurisprudence; and I meant to include it as positive reiforcement for the cases which have followed. The harm principle has case precedent. The harm reduction principle may be interpreted as an extension of that. But if you go before the court and suggest you have no idea where it belongs in the black letter jurisprudence, they will probably dismiss it after full hearing. The Court allowing the issues you want included might just as well signal their intent on killing two birds with one stone.
The court below heard argument as to constitutionality of simple possession, giving the appearance that they accepted most of your arguments on face value. They then went through their required analysis as to how to resolve the issue under a constitutional framework. Two different standards as to what the degree of harm must be in the proscribed activity were enunciated. I'm not sure actual harm was required to be shown for the court to find the law constitutional under prior caselaw.
Do you agree with either of the tests announced? If not, did you suggest an alternative jurisprudence you can agree with that somehow escaped the reasons for the judgement rendered and opinion?
I am looking at the confines of the litigation. I don't see where much of your points albeit good ones, fit in the scheme of the jurisprudence evolving, other than the observations made in earlier posts. And I see no justification for the court to abandon their duty of restraint on matters reserved for the body politic. Stare decisis weighs heavily on the court system.
Your Taste and Pursuits argument is one of your best, it too runs against existing precedent that held there is no fundamental right to possess marijuana. Are you carving out new precedent or revisiting prior rulings when you raise the Taste and Pursuits argument? I find the argument grounded in scection 7, not 15. Yet section 15 would allow you to test your equal protection argument and set precedent. The section 7 placement for the argument rehashes old issues in a more liberal environment. Either way, this argument needs to be sustained.
If I missed where you suggest a whole different jurisprudence, I'll back up. Otherwise, that's all that's before the court. I don't see where they are reviewing earth shattering reforms in law.
If you cannot prevail on simple possession, you won't prevail on trafficking. True or not? If you don't like Parker and Richardson, how would you have decided the cases given case precedent? If you were to have violated stare decisis, under what jurisprudential justification in Richardson? What bothers you about Parker? The fact that the court distinguished med use from rec use and found favorably for one, but not the other?
I don't have a sense of dissatisfaction for the work you are doing. But I do sense a dissatisfaction on your part with the legal system and legislative process. Been there. It's a bitch.
You skirt my focus. Where does your argument for harm reduction fit in the framework of your constitutional analysis, how the law integrates with your argument. Prowse articulates a roadmap for the courts to follow in order to prevail on the simple possession beef. Doesn't Conroy and Young follow that map. If you don't like Prowse's opinion, how would you have written the decision?
If you win the case, hooray! If you lose, the question remains, did the cause get delayed another generation before the next opportunity arises due to unfavorable case precedent? Did the present case present prematurely harm reduction arguments that might have been fitted more easily into a defined jurisprudence after the dust clears in Caine/Clay/Malmo-Levine?
And so on...critics are a fact of life.
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talisman
(journeyman)
4/18/01 07:32 AM
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Re: Court's have set precedent
[Post#: 118219
/ re: 117496
]
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david and rastaruss: I hear ya
1. When state interest maintains fundamental justice to serve an exclusive state interest which exceeds REASONABLE LIMITS PRESCRIBED BY LAW AS CAN BE DEMONSTRATABLY JUSTIFIED, systemic discrimination is enacted.
Studies almost unanimously recommend that Parliment reconsider its' position; Parliment has not sufficiently done so. Amendments (to the Act) have offered no resolution for social and spiritual cannabis use while further unduly burdening that use.
[30]In Cunningham at p. 151, McLachlin J. had also held that the “Charter does not protect against insignificant or ‘trivial’ limitations of rights”.
According to a recent National Post poll , 65 per cent of Canadians agree that possession of small amounts of cannabis for personal use should not be criminalized. Yet, 19,200 adults and youths were charged for possession of cannabis. 2,000 Canadians went to jail on simple possession charges. On the strength of a law two out of three Canadians want abolished. How insignificant or trivial is a
limitation of rights is that?
There is on record, numerous recognized publications which have critized governmental attempts of suppressing information (most of that critisism is directed at the U.S.Agencies); Canada requires applications of Freedom of Informaton and/or reference to that Act.
2. Overview of medical studies, judicial findings, and, statistical comparisons of alcohol, tobacco and cannabis demonstrate that alcohol and tobacco have significantly more far-reaching negative consequence upon the individual and, far more societal woes that extend well beyond any dangers associated with cannabis use... the state interest
exceeds REASONABLE LIMITS PRESCRIBED BY LAW AS CAN BE DEMONSTRATABLY JUSTIFIED.
[31] Finally, the harm principle as articulated by Braidwood J.A. is not unlike a principle of fundamental justice described by Sopinka J. at pp. 594-95 of Rodriguez. He held that where the “deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid
purpose”. Similarly, if the marihuana prohibition, which risks depriving the appellant of his liberty, does little or nothing to enhance the state’s interests because there is no rational basis for finding that marihuana use is harmful, there is a breach of fundamental justice.
3. To coerce behaviour that exceeds state interest of REASONABLE LIMITS PRESCRIBED BY LAW AS CAN BE DEMONSTRATABLY JUSTIFIED constitutes systemic discrimination and persecution.
Justice McCart (in Clay v.Crown) found that Cannabis legislation an awkward political question.
Economist Milton Friedman states: "Legalizing drugs would simultaneously reduce the amount of crime and raise the quality of law enforcement. Can you conceive of any other measure that so would accomplish much to
promote law and order."
What about the criminal acts of abuse of authority?
4. Section 32.(1)states: This Charter applies (a) to the Parliment and government of Canada in respect of all matters within the authority of Parliment including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
5. In accordance with Section 52.(1) the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or
effect. And Section 52.(2) The Constitution of Canada includes (a) the Canada Act, including this Act; (b) the Acts and orders referred to in Schedule I; and (c)any ammendment to any Act or order referred to in paragraph
6. In accordance to the Canadian Bill of Rights in its entirety
7. In accordance to the appropriate Sections and Subsections of the International Covenant on Civil and Political Rights (1-27)
8. Applicable aspects of cases/case law includes McCart, Parker, Krieger, etc.
Canadian Charter of Rights and Freedoms, Commentary, Tarnopolsky & Beaudoin ISBN O-459 34920-1(bound),
ISBN O-459-35230-X (pbk). Interpertation of the Canadian Charter of Rights and Freedoms: Some General Considerations pg 25 - 39.
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Common_Sense
(stranger
)
4/18/01 07:59 AM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 118225
/ re: 117459
]
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@ David
A gentleman was just interviewed by John Gormley on NTR 650 radio, in Saskatchewan, who had just completed and published a study on teens in Canada. One of the areas studied was drug use. He is publishing the fact that, although drugs are considerably more available than in the 60's, 70's and 80's, the use by Teens is considerably less.
As I just caught the tail end of this program, I did not catch his name or publication. This is a current study and perhaps something worth mentioning.
Let me know if you want details and I will call the radio station and post the info for you.
...For what it's worth.
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davidmalmolevine
(superposter)
4/18/01 06:59 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 118494
/ re: 117897
]
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@Everyone else listening in......
Am I being understood? Or am I unclear?
@Shade
"I have never said harm reduction is not the way to go. I suggest using your case right now to challenge trafficking under harm reduction is not strategically sound."
You are so wrong. You can deal with impairment with proper use, but you can only deal with lung damage through proper dealing and growing. In other words, you can't have real harm reduction without having regulated (organic, no mould etc etc) growing and dealing. If you don't address all the laws, you can't deal with their number one concern.
"Med use as a test case had no existing precedent under the charter, it was an evolution, an extension, not a change of mind or jurisprudence; and I meant to include it as positive reiforcement for the cases which have followed. The harm principle has case precedent. The harm reduction principle may be interpreted as an extension of that. But if you go before the court and suggest you have no idea where it belongs in the black letter jurisprudence, they will probably dismiss it after full hearing."
Read the argument. It goes "Mill wrote the book on liberty (literally), then P. E. Trudeau stole from the book to make our constitution. On liberty talks about protecting dealers in hard liquor. Protecting dealers of substances is an idea who's time has come. It comes out of a correct reading of the Constitution, one that recognises autonomy and the relative harmlessness of non-black market cannabis use (the harm principle and the idea of proper use are two ideas that the Supreme Court never had before them....).
I don't care if there is no precedent.....it, like the end of Jim Crow laws (also without precedent) is an idea who's time has come. Public opinion has changed along with our understanding of cannabis, and the courts are quicker to pick up on that change than the politicians.
"The Court allowing the issues you want included might just as well signal their intent on killing two birds with one stone. The court below heard argument as to constitutionality of simple possession, giving the appearance that they accepted most of your arguments on face value. They then went through their required analysis as to how to resolve the issue under a constitutional framework. Two different standards as to what the degree of harm must be in the proscribed activity were enunciated. I'm not sure actual harm was required to be shown for the court to find the law constitutional under prior caselaw.
Do you agree with either of the tests announced?"
No. Both of the tests are seen as levels of "inherent harm", rather than recognising the harm can be reduced/eliminated. None of the studies they cite when they speak of "harms" are of PROPERLY USED CANNABIS ..... only mis-used cannabis. I say that, until tests are done on properly used cannabis, we won't know the actual level of harm. Any honest review of the evidence on the subject will reveal that, with PROPERLY SMOKED CANNABIS, the harms, if any, are well below that of PROPERLY USED CAFFEINE.
"If not, did you suggest an alternative jurisprudence you can agree with that somehow escaped the reasons for the judgement rendered and opinion?"
Yes. Judge Howard and the WHO report both reveal "harm reduction" arguments......the judges chose to ignore these statements in their decision.
"I am looking at the confines of the litigation. I don't see where much of your points albeit good ones, fit in the scheme of the jurisprudence evolving, other than the observations made in earlier posts."
Harmless people are protected by the Constitution. Proper use, growing and dealing is harmless. What more do you need?
"And I see no justification for the court to abandon their duty of restraint on matters reserved for the body politic. Stare decisis weighs heavily on the court system. Your Taste and Pursuits argument is one of your best, it too runs against existing precedent that held there is no fundamental right to possess marijuana."
Not to "possess marijuana" - the fundamental right is "to not be harmed if you are doing no harm" ....... you, like the courts, use the straw man argument when you really should be responding to what was written.
"Are you carving out new precedent or revisiting prior rulings when you raise the Taste and Pursuits argument?"
Lots of prior rulings. B.R. v. Children's Aid Society, Morgentaler, Vriend, three studies of "Criminality" etc etc...... For details, see "What I told the High Court" in this forum.
"I find the argument grounded in scection 7, not 15."
Gotta read the Vriend part again. Sec. 15 is a list of characteristics. Homosexuality has just been added. What do the characteristics have in common? They are all 1) Not inherently harmfull, and 2) Historically persecuted "minorities" (or in the case of women, a dominated majority)....drug users fit the bill perfectly.
"Yet section 15 would allow you to test your equal protection argument and set precedent. The section 7 placement for the argument rehashes old issues in a more liberal environment. Either way, this argument needs to be sustained."
Feel free to suggest things that would "shore them up" .... most people are satisfied that proper cannabis use exists.....and most people understand that if proper use exists, then users, growers and dealers are harmless people that need protection. Most people.
"If I missed where you suggest a whole different jurisprudence, I'll back up. Otherwise, that's all that's before the court. I don't see where they are reviewing earth shattering reforms in law."
What would be earth - shattering would be to recognise that the harm principle applies to the current scapegoats - drug users, growers and dealers. That would end the biggest war in the world. Shatter shatter shatter.
"If you cannot prevail on simple possession, you won't prevail on trafficking."
I'm gonna give them a 30 minute crash course in proper growing and dealing and smoking.......trafficking first - the others will be a cinch.
"True or not?"
False as fuck. I could teach a ten year old how to grow and deal pot safely. The Judges should have no trouble following along.
"If you don't like Parker and Richardson, how would you have decided the cases given case precedent?"
They were not challenging the right of healthy people to grow and deal. Apples and oranges. Case precedents of rec. dealing and such suck - they don't recognise harm reduction even exists.
"If you were to have violated stare decisis, under what jurisprudential justification in Richardson?"
Richardson was a nice case in a sentancing respect, but it didn't do fuck all for harm reduction awareness.
"What bothers you about Parker?"
Medical necessity is different from the harm principle. The harm principle protects healthy users, poor, "uneducated" growers and dealers - all scapegoats present and future.
"The fact that the court distinguished med use from rec use and found favorably for one, but not the other?"
Harm reduction strategies didn't come up in that trial either.
"I don't have a sense of dissatisfaction for the work you are doing. But I do sense a dissatisfaction on your part with the legal system and legislative process. Been there. It's a bitch. "
Hey, I'm having fun.
"You skirt my focus."
you skirt mine. do you 1) agree that the harms can be reduced to lower than caffeine levels? 2) agree that harmless people are protected by the constitution
? What's your problem, then?
"Where does your argument for harm reduction fit in the framework of your constitutional analysis, how the law integrates with your argument."
I hope you understand, now. I just went through the whole two-sentance formula for the upteenth time. I hope you understand now. Harmless people protected. Proper use/growing/dealing harmless. Two sentances.
"Prowse articulates a roadmap for the courts to follow in order to prevail on the simple possession beef. Doesn't Conroy and Young follow that map."
They choose to avoid harm reduction too. I disagree. We give the court two ways to free us......whether they believe in harm reduction or not, we can win either way. I think it's a smart strategy, myself.
"If you don't like Prowse's opinion, how would you have written the decision?"
Harm reduction exists....proper use, growing and dealing are harmless......pot culture is protected....cafes should be allowed immediately, and politicians should consult with health professionals and activists to write up regulations that adress societies concerns regarding MIS use of cannabis.
"If you win the case, hooray! If you lose, the question remains, did the cause get delayed another generation before the next opportunity arises due to unfavorable case precedent?"
I would rather try and fail with the truth than be too scared to attempt it and just trust that the same, watered-down cow-towing pussy footing spineless sissy minimal-dignity arguments will work better now than they did in the late seventies.
"Did the present case present prematurely harm reduction arguments that might have been fitted more easily into a defined jurisprudence after the dust clears in Caine/Clay/Malmo-Levine?"
"malmo-levine" is about trafficking only. I had to teach the lower courts all about the harm principle, so they only got ten minutes on dealing......
This time, I'll be doing most of my education on proper dealing...they wont be able to ignore harm reduction arguments any longer.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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davidmalmolevine
(superposter)
4/18/01 07:27 PM
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Re: Harm Principle v. Cannabis Harm Reduction
[Post#: 118501
/ re: 118225
]
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@ David
A gentleman was just interviewed by John Gormley on NTR 650 radio, in Saskatchewan, who had just completed and published a study on teens in Canada. One of the areas studied was drug use. He is publishing the fact that, although drugs are considerably more available than in the 60's, 70's and 80's, the use by Teens is considerably less.
As I just caught the tail end of this program, I did not catch his name or publication. This is a current study and perhaps something worth mentioning.
Let me know if you want details and I will call the radio station and post the info for you.
...For what it's worth. "
Always good to post more studies....I would suggest it's own heading....perhaps a collection of the latest studies available online for someone out there who isn't doing anything and wants a project. I have lots to do......
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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TaxPayer
(member)
4/19/01 04:39 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 118886
/ re: 62343
]
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The nature of freedom points around section 21 are particularly important to me. If our courts fail to recognize the simple point that criminal sanction is the most serious force the state can apply to a citizen, not warranted unless harm to others is demonstrable,, well,, I may have to rethink my position as the TaxPayer and change my moniker to SlaveInCommunistCanada.
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davidmalmolevine
(superposter)
4/28/01 12:48 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 122074
/ re: 118886
]
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Bumpin.....John Conroy's folks have told me people are looking for this info......
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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thefunk
(stranger
)
5/3/01 09:15 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 123818
/ re: 122074
]
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i cant believe i read this whole thread....... and understood it! anyway my point is that davids arguement is awesome. harmless marijuana = legalized marijuana
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matthouston
(stranger
)
5/5/01 10:13 AM
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Re: Harm Principle
[Post#: 124198
/ re: 117439
]
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Dear David Malmo-Levine;
I have been following this thread for just a short time and I hope your supreme court challenge works.
There was this one thought I wanted to add. I hope it helps, or at least sparks some thought.
You have posted some comments regarding the regulation of a MJ growing and distribution industry and how regulation will minimize any harm. In your arguement you use the coffee bean analogy. I don't think this analogy works. Coffee does not have a history or reputation (real or fabricated) of causing health, social or legal problems.
The point I am getting at is if you use this analogy in court it may not convey the point you are trying to make.
I am not aware of any real world examples of an unregulated coffee industry causing any problems. I may be wrong.
On the other hand my father grew up in Germany just before the war. When the family farm was taken away from them it was not the nazis who did it but the bankers.
the point is that unregulated banking has caused tremendous problems in the recent past. Using an analogy that is more recent in history and memory and universally recognized/understood may be more effective.
Of course you run the risk of cliche when referring to nazis.
Anyway, I just wanted to offer anything I can to further the collective knowledge.
If you win there should be a national holiday.
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